Public Use | Kelo

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Our thanks to Dwight Merriam for letting us know about these two decisions. 

  • Gold v. Town of East Haddam, No. 18067 (Conn. Mar. 24, 2009) – On one hand, this is a fairly straightforward summary judgment case: are material facts disputed such that a trial is merited?  On the other, it involves the question of whether the property taken pursuant to a referendum was to be used for a school or some other purpose (under Connecticut law, according to the opinion, a taking for anything but a school must be commenced within six months of the vote authorizing the taking, but a taking for a school purposes is subject to some other time limit).  In reversing the court of appeals’ determination that there was a genuine dispute regarding the uses to which the property taken would be put, the Supreme Court held the language of the referendum itself demonstrated

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Continue Reading Two Interesting Eminent Domain Decisions

Thank you to those who were able to join us live for today’s teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

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Continue Reading Links From Today’s ABA Teleconference: Hot Topics In Land Use Law 2009

Thank you to those who were able to join us live for today’s teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

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Continue Reading Links From ABA Condemnation Hot Topics Teleconference

Our thanks to Robert S. Poliner, the Connecticut Ombudsman for Property Rights for permitting us to republish his review of Jeff Benedict’s Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here), the recently published book about the infamous U.S. Supreme Court eminent domain case Kelo v. City of New London, 545 U.S. 469 (2005).

Little Pink House, Eminent Domain
Time to Change the Law

The question that Wes Horton, the City of New London’s appellate counsel, answered regarding eminent domain that Tom Londregan, New London’s City Attorney, didn’t want asked or answered was where to draw the line between public and private use?  Horton answered U. S. Supreme Court Justice Sandra Day O’Connor that he would not draw one and it would be okay if a city takes a Motel 6 that pays lower taxes and…

Continue Reading Book Review: Little Pink House, Eminent Domain – Time To Change The Law

There’s still time to register for two teleconferences that are a part of the ABA State and Local Government Section’s “Virtual Spring Meeting.”  I hope you can join us for at least one of the programs.

  • Wednesday, April 1, 2:00 – 3:30 pm, EDT: Condemnation Hot Topics – The program will examine new and important condemnation cases andtrends, and also review eminent domain as a backdrop for land useregulation. I will leading the session on pretext and public use in eminent domain cases. Also on the faculty are Robert Freilich, Mary Lynn Huett, and Edward Sullivan. The moderator is Professor Steven Eagle. More here.
  • Thursday, April 2, Noon – 1:30 pm, EDT: Hot Topics in Land Use Law 2009 – The 2009 version of this popular annual program will cover the latestdevelopments in several areas of the law related to land useregulation.  Among the expected topics are the ability of town

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Continue Reading Upcoming ABA Condemnation, Land Use Teleconferences

Following up on this story, West Hawaii Today reports “Attorneys argue against Supreme Court ruling on bypass,” about whether a second attempt to condemn property ostensibly for a road ispretextual when the court determined the first attempt was unconstitutional and nothing changed:

Attorneys for the Richards family and theCoupe Trust, in documents filed in 3rd Circuit Court Friday, argue thatthe condemnation action initiated by Hawaii County in 2005 wasessentially the same as one filed in 2000 and later dismissed.

Disclosure: we represent the property owner in this case.

The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously — even when the taking is for a “classic” public use — and remanded the case for consideration of evidence of pretext.

Continue Reading More On Pretext In Eminent Domain

Professor James Ely (who among other things, is the author of The Guardian of Every Other Right: A Constitutional History of Property Rights) writes “A Report Card on Post-Kelo Eminent Domain Reforms” at the Oxford University Press blog.  He notes the “decidedly mixed” legislative reactions to Kelo, and how many apparent reforms have left loopholes. He also notes:

Although the state legislative response to Kelo has been decidedlymixed, several state supreme courts have struck down the exercise ofeminent domain for economic development purposes by private parties.For example, the Ohio and Oklahoma supreme courts have specificallyrejected the reasoning in Kelo and construed their own stateconstitutions to afford greater protection of property owners againsteminent domain.

He concludes that with a reintroduction of property rights to the public debate, that efforts at reform “may ultimately bear more fruit.”Continue Reading James Ely: Report Card On Post-Kelo Eminent Domain Reforms

As reported in this story from West Hawaii Today, a Hawaii trial court is considering whether a second attempt to condemn property ostensibly for a road is pretextual when it determined the first attempt was unconstitutional. Disclosure: we represent the property owner in this case.

“Classic” Uses Not Immune

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that even when a taking appears to be for a public purpose, the government’s assertions “need not be taken at face value where there is evidence that the stated purpose might be pretextual,” Id. at 644. The court held that courts should consider a landowner’s defense of pretext even when a “classic” use such as a road is involved, and “the single fact that a project is a road does not per se make it a…

Continue Reading Determining Eminent Domain Pretext In Serial Takings

“Susette Kelo’s legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Dozens of states have tightened rules for eminent domain. Many have simply banned the practice of eminent domain for economic development. Susette Kelo now lives in a town across the river from New London.”

Continue Reading Cato Institute Video Explaining Kelo

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 – 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon – 1:30 EDT).  I’ll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government’s ability to take property.

Registration information is available on the links.

Continue Reading Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting